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HomeMy WebLinkAbout450505 ALLIANCE DATA SYSTEMS INC - CONTRACT - RFP - P1105 UTILITY CUSTOMER INFORMATION SYSTEM CONSULTING (2)PROFESSIONAL SERVICES AGREEMENT WORK ORDER TYPE THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and ADS Alliance Data Systems, Inc., hereinafter referred to as "Professional'. WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Professional agrees to provide services in accordance with any project Work Orders for P1105 Utility Customer Information System Consulting, as mutually agreed by the City and Professional. A blank sample of a work order is attached hereto as Exhibit "A", consisting of one (1) page and is incorporated herein by this reference. No Work Order shall exceed $75,000, The City reserves the right to independently bid any project rather than issuing a Work Order to the Professional for the same pursuant to this Agreement. 2. The Work Schedule. The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule stated on each Work Order. 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated as specified on each Work Order. Any extensions of any time limit must be agreed upon in writing by the parties hereto. 4. Contract Period. This Agreement shall commence upon signing, and shall continue in full force and effect until May 31, 2009, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley CPIU published by the Colorado State Planning and Budget Office will be used as a guide. Written notice of renewal shall be provided to the Service Provider and mailed no later than ninety (90) days prior to contract end. THE CITY OF FORT COLLINS, `�C`OLORADO By, v 4AV AI �,�(6�J ` 4C( 7/Vp /=A2James B. O'Neill II, CPPO, FNIGP Director/of Purchasing & Risk Management Date: ADy Alliance ata Systems, Inc BY: m Title: Vlel-%ire G�Gi)f CORPORATE PRESIDENT OR VICE PRESIDENT Date: TTEST: Corporate Sec .tary 0 G/u/0 P (Corporate Seal) ;otiPRY Poe", z�� N� y NrF OF EXPIRES EXHIBIT "A" WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND DATED: Work Order Number: Purchase Order Number: Project Title: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: Professional agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Professional Services Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Professional Services Agreement and this work order (including the attached forms) the Professional Services Agreement shall control. The attached forms consisting of Exhibits , consisting of _ (_) pages are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. Professional: By: Date: City of Fort Collins Submitted By: _,_, Project Manager Date: Reviewed by: Senior Utility Engineer Date: Approved by: Utilities General Manager Date: Approved by: Director of Purchasing & Risk Management (if over $00,000.) Date: cc: Purchasing IMMIlelY�:i To provide consulting on Oracle 10g and the Ventyx Customer Information System 4.1. Alliance Data and MSS will negotiate either a fixed bid or a time and materials bid with Fort Collins. A fixed bid would be dependent on the length, complexity and type of project requested. Alliance Data's and MSS' applicable hourly rate for professional services will be $125.00. For professional services outside the scope of this RFP, such as.professional. services hours for special projects, we will review the scope of the project, and provide an estimate of hours to Fort Collins to establish costs. Travel expenses will be billed at cost with receipts provided to Fort Collins. 5. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this agreement shall be effective when mailed, postage prepaid and sent to the following address: ADS Alliance Data Systems, Inc. Attn: Kay Fuhrman 17657 Waterview Parkway Dallas, TX 75252 a copy to ADS Alliance Data Systems, Inc. 17655 Waterview Parkway Dallas, TX 75252 Attn: General Counsel City of Fort Collins Attn: Purchasing PO Box 580 Fort Collins, CO 80522 copy City of Fort Collins Utilities Attn: Opal Dick 700 Wood Street Fort Collins, CO 80521 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination subject only to the performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 6. Acceptance. Acceptance or rejection of deliverables must occur by the City within thirty (30) business days of the City's receipt of each such deliverable. If a deliverable is neither approved nor rejected within such time period, the deliverable is deemed accepted and Professional will move forward with any subsequent deliverables. Deliverables may only be rejected for cause, including failure of the deliverable to substantially comply with the specifications regarding such deliverable contained in the Agreement. If a deliverable is disapproved, a description of why it was rejected must be provided. Upon notification of disapproval, Professional will resubmit deliverables within twenty (20) business days or a timeframe agreed to by the City and Professional. The City shall not withhold amounts due with regard to deliverables that have been accepted or deemed accepted pursuant to this Section 6, 7. Design, Proiect Insurance and Insurance Responsibility. The Professional shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies reported to Professional within thirty (30) days of acceptance of the applicable deliverable by the City. If the City does not inform Professional of any non-compliance within the timeframe described above, it shall be conclusively presumed that the deliverables conformed to the applicable specifications and contain no errors or bugs. The exclusive remedy for breach of this warranty shall be the modification of the deliverables such that they substantially conform to the applicable specifications. The Professional shall indemnify, save and hold harmless the City its officers and employees, in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City and for the City's costs and reasonable attorneys fees arising directly or indirectly out of the Professional's negligent performance of any of the services furnished under this Agreement. The Professional shall maintain commercial general liability insurance in the amount of $500,000 combined single limits, and errors and omissions insurance in the amount of N/A. 8. Compensation. In consideration of services to be performed pursuant to this Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis designated in Exhibit "B", consisting of one (1) page, attached hereto and incorporated herein by this reference. At the election of the City, each Work Order may contain a maximum fee, which shall be negotiated by the parties hereto for each such Work Order. Monthly partial payments based upon the Professional's billings and itemized statements are permissible. The amounts of all such partial payments shall be based upon the Professional's City -verified progress in completing the services to be performed pursuant to the Work Order and upon approval of the Professional's direct reimbursable expenses. Final payment shall be made following acceptance of the work by the City in accordance with Section 6 herein. The City shall make required payments within thirty (30) days after the date of the invoice for such payment. 9. City Representative. The City will designate, prior to commencement of work, its project representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project. All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to the City Representative. 10. Work Product. Professional agrees that all data that Professional receives directly from the City in connection with the Services shall continue to be owned solely by the City. All Work Product will be considered the property of the City. Work Product means any work product, creation, material, item or deliverable, documentation, information, or other items created, produced or otherwise generated by Professional in the course of Professional's performance of Services under this Agreement or any Work Order pursuant to this Agreement and that have been paid for by the City. It is understood and agreed that "Work Product' shall not include any preexisting or licensed software or hardware used by Professional to provide Services to the City or any Professional Intellectual Property (as defined below). Professional does not convey nor does the City obtain any right, title or interest in or to any Professional Intellectual Property. Professional Intellectual Property includes (i) the programs, systems, configurations, data, tools, methods, materials, software, hardware, processes, know-how, trade secrets or other intellectual property of Professional, and related documentation, existing on the effective date of this Agreement, (ii) multi -purpose libraries or routines, or development tools that may be provided or used in connection with the Services, (iii) any modifications, improvements, enhancements or new versions of the foregoing developed by or for Professional or its employees or contractors (either solely or jointly with employees of the City or others), in connection with Professional's performance of this Agreement or otherwise, or (iv) any inventions, discoveries, ideas, concepts, know-how, or techniques that are developed at least in part by Professional's employees or contractors in connection with their performance of Services under this Agreement. The City shall not use or disclose any Professional Intellectual Property except as necessary in connection with the City's receipt of services during the term of this Agreement. Without limiting the forgoing, and notwithstanding anything in this Agreement to the contrary, Professional shall have the right to retain and use any multi -purpose libraries or routines, or development tools that may be provided or used in connection with the Agreement and any general skills ideas, concepts, know-how and expertise that Professional learns, obtains, uses, develops or creates in rendering services for the City, insofar as such ideas, concepts and know-how are of generic applicability and are acquired and applied without disclosure of any confidential or proprietary information of the City. 11. Monthly Report. Commencing thirty (30) days after Notice to Proceed is given on any Work Order and every thirty days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Work Order, Work Schedule and other material information. Failure to provide any required monthly report after request by the City may, at the option of the City, suspend the processing of any partial payment request. 12. Independent Contractor. The services to be performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 13. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 14. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement. 15. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default. 16, Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of thirty (30) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. 17. Limitation of Liability and Disclaimer. (a) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, PROFESSIONAL MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NO HIDDEN AND/OR UNKNOWN DEFECTS, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. (b) EXCEPT AS SET FORTH IN SECTION 20_ BELOW, IN NO EVENT SHALL PROFESSIONAL BE LIABLE TO THE CITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY AND EVEN IF PROFESSIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL PROFESSIONAL BE LIABLE FOR DAMAGES TO THE CITY OR ANY OTHER PERSON IN EXCESS OF THE AVERAGE MONTHLY FEE UNDER THE WORK ORDER UNDER WHICH THE LIABILITY AROSE TIMES THE LESSER OF SIX (6) OR THE NUMBER OF MONTHS THE APPLICABLE WORK ORDER HAS BEEN IN EFFECT, NOT INCLUDING ANY AMOUNTS PAID ON A PASS -THROUGH BASIS. (c) Except with regard to obligations to. make payments as set forth herein, neither party shall be liable for any delay or failure to perform if such delay or failure arises from any cause beyond the reasonable control of the applicable party. In such event, the non -performing party is excused from further performance for as long as such circumstances prevail and the party continues to use commercially reasonable efforts to recommence performance. 18. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 19. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 20. Prohibition Against Employing illegal Aliens. This paragraph shall apply to all Professionals whose performance of work under this Agreement does not involve the delivery of a specific end product other than reports that are merely incidental to the performance of said work. Pursuant to Section 8-17.5-101, C.R.S., et, seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien; and 2. Professional has participated or attempted to participate in the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "Basic Pilot Program") in order to confirm the employment eligibility of all newly hired employees. b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Professional shall continue to apply to participate in the Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Basic Pilot Program is discontinued. Professional is prohibited from using Basic Pilot Program procedures to undertake pre- employment screening of job applicants while this Agreement is being performed. e. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: 1. Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Professional shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. f. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the 'Department') made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R,C_ the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. h. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach.